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E.F. Lippert - Summary Hearing Report, April 22, 1997

Summary Hearing Report, April 22, 1997

50 Wolf Road Albany,
New York 12233-1550

In the Matter

- of -

the Application of


for a modified permit to expand its sand and gravel mine in the Town of Allegany, Cattaraugus County.

DEC Application No. 9-0420-00054/00002


- by -

Edward Buhrmaster
Administrative Law Judge

April 22, 1997

Summary Hearing Report

E.F. Lippert & Company, Inc. ("the Applicant") proposes a 65-acre expansion of a previously permitted 50.1-acre surface unconsolidated sand, gravel and topsoil mine. The proposed expansion area is located east and south of the existing mine and southeast of the intersection of Zink Road (formerly Birch Run Road) and South Nine Mile Road in the Town of Allegany, Cattaraugus County.

The existing operation involves excavating to about 45 feet below the local groundwater table. Such excavation would continue on the expansion acreage with no change in mine operating procedures. The reclamation objective is an additional 58 acres of lake and 7 acres of lake shore. The expansion would extend the mine's life about 15 years, the Applicant estimates.

Permit Processing

The Applicant seeks to modify its Mined Land Reclamation Law permit issued pursuant to Article 23, Title 27, of the New York State Environmental Conservation Law ("ECL") and Parts 420-423 of Title 6 of the New York Code of Rules and Regulations ("6 NYCRR Parts 420-423"). Its application was received by Department of Environmental Conservation ("DEC") Staff on August 5, 1994.

After coordination with the Town of Allegany, DEC became lead agency for review of the project pursuant to the State Environmental Quality Review Act ("SEQRA", ECL Article 8). On October 28, 1994, DEC issued a Positive Declaration, determining that the mine expansion would have a significant effect on the environment. A draft Environmental Impact Statement ("EIS") was accepted by DEC on December 6, 1996, and the permit application was determined to be complete on December 9, 1996. DEC's Notice of Complete Application and Availability of the Draft EIS was published in the Olean Times Herald on December 13, 1996, and DEC's Environmental Notice Bulletin on December 18, 1996.

DEC Staff accepted comments on the application and draft EIS until January 17, 1997. Objection letters from nine nearby landowners and a 79-signature petition against the expansion were received during the comment period. A comment letter from the Town of Allegany related the concerns of facility neighbors but did not state that the Town opposed permit issuance or requested particular permit conditions. On February 18, 1997, DEC's Region 9 Staff referred the matter to DEC's Office of Hearings and Mediation Services for scheduling of a legislative hearing and issues conference.

Legislative Hearing

Consistent with a hearing notice issued on March 12, 1997, I held a legislative hearing at 7 p.m. on April 15, 1997, at the Allegany Town Hall on Main Street, Allegany. The hearing was held to receive public comments on the application for the mine expansion, the accompanying draft EIS, and a draft permit prepared by DEC Staff. Notice of the hearing was provided in the Olean Times Herald and the March 19, 1997, edition of the Environmental Notice Bulletin. Copies of the notice were also distributed to local officials and people who had previously commented on the mine expansion.

At the hearing five people who live near the project site spoke against the expansion, expressing concerns about noise, dust, possible well water impacts, diminishment of property values, and safety issues associated with development of a large lake. No one spoke in favor of the project, although prior to the hearing 16 letters supporting the project were received in response to the hearing notice. Many were from the Applicant's customers, including Cattaraugus County, the City of Olean, the Towns of Allegany, Portville, and Hinsdale, private construction, electrical and landscaping contractors, a concrete manufacturer, and a logging company. Most of the letters stressed the quality of the Applicant's product and the transportation-cost savings associated with having the facility nearby.

Issues Conference

As announced in the hearing notice, I held an issues conference at 10:30 a.m. on April 16, 1997, also at the Allegany Town Hall. The Applicant was represented by J. Michael Shane, Esq., of Olean, New York. DEC Staff was represented by David Stever, Esq., of DEC's Region 9 office in Buffalo.

The hearing notice provided an opportunity for interested persons to file for party status at a hearing which would adjudicate permit-related issues. However, no filings were received prior to the deadline set in the notice, and no late filings were presented at the issues conference. Therefore, the only conference participants were the Applicant and DEC Staff.

DEC Staff's position was that the mine expansion met all relevant permitting criteria, and that a modified permit encompassing the expanded project should be issued. That modified permit, released as a draft prior to the conference, was marked as Exhibit No. 9 and is attached to this hearing report as Appendix "A".

The Applicant offered no objections to the permit, although it requested clarification of special condition No. 6. DEC Staff substituted new language for that condition (attached as Appendix "B" to this report) which was then refined further in a discussion I had with the parties.

Agricultural Impact Mitigation Plan

In its Positive Declaration, DEC Staff noted that the loss of 65 acres of agricultural land within a state agricultural district was one of the project's significant environmental impacts. To address this impact, the Applicant has agreed to a mitigation plan which provides that "for every acre of prime farm land permanently removed from potential agricultural use, an acre of land at an off-site location associated with an active farming operation, must be benefitted or improved within the same permit term or within one year of said removal, whichever is longer." [See Appendix "B".]

At the issues conference the parties agreed to amend this condition so that the issued permit confirms that the mitigation, to be completed on an acre-for-acre basis, is for the loss of 40 acres of prime farmland. Also, they agreed that "active farming operation" would be defined in the condition to include "the use or conversion of present equivalent land to produce agricultural crops for economic benefit as may be demanded or desired for at least two of the five years following completion of mitigation."

Finally, they confirmed that the Applicant could meet the condition's requirements through a single project performed at one time on one parcel of land.

On-Site Material Transport

The Applicant's mining plan indicates that material from the expansion area will be moved by vehicle along an abandoned railroad grade to the on-site processing plant. However, at the legislative hearing, the Applicant's environmental consultant, William E. Hopkins of Headwaters Environmental Services, indicated a change by which conveyors, rather than trucks, would move the material on-site.

At the issues conference, the Applicant confirmed that conveyors were a possible future method of moving materials on-site to the processing plant. The parties agreed that a conveyor system might allay neighbors' concerns about noise and dust associated with the existing operation. The use of conveyors, however, will require amendment of the mining plan and the prior approval of DEC Staff.

Reclamation Bond

DEC Staff's hearing referral said that the Applicant met all relevant permitting criteria for the mine expansion except with regard to the reclamation bond required pursuant to 6 NYCRR Part 423, which Staff said would have to be adjusted prior to permit issuance. At the issues conference Staff confirmed that the adjustment would be based upon consideration of the amount of new acreage that would be affected by the mine expansion as well as the amount of acreage at the existing site that has been reclaimed to date. Before the bond is adjusted, the Applicant will provide Staff with an update confirming the extent of mining since the bond was last adjusted.

Responsiveness Summary

To complete the final EIS for this project, DEC must respond to all substantive comments on the draft EIS. [6 NYCRR 617.9(b)(8).] The Applicant shall prepare a "responsiveness summary" addressing all comments received in response to the Notice of Complete Application and Availability of the Draft DEIS, and also in response to the Notice of Public Hearing. This shall include written comments submitted to the Office of Hearings and Mediation Services, copies of which I have furnished to the Applicant, and oral statements made at the legislative hearing. DEC Staff shall receive and review the Applicant's draft for adequacy and accuracy and direct necessary changes before it adopts the summary as its own.

Order of Disposition

There are no disputes between the Applicant and Department Staff over any substantial term or condition of the draft permit prepared by Staff as amended at the issues conference. Also, there were no filings for party status and therefore no other potential issues to adjudicate.

Therefore, consistent with 6 NYCRR 624.4(c)(5), the hearing is canceled and Staff shall continue processing the application to issue the requested permit. As Staff explained, the new permit shall supersede the existing permit and encompass both the existing operation and the mine expansion.

TO: J. Michael Shane, Esq.
Suite 107
2646 West State Street
Olean, New York 14760

Thomas P. Stayer, Vice President
E.F. Lippert & Company, Inc.
4451 South Nine Mile Road
Allegany, New York 14706

David F. Stever, Esq.
NYSDEC, Region 9
270 Michigan Avenue
Buffalo, New York 14203-2999

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